Opinion
2012-SC-000632-MR
04-17-2014
WILLIAM DAVIS, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: Roy Alyette Durham, II Assistant Public Advocate COUNSEL FOR APPELLEE: Jack Conway Attorney General Perry Thomas Ryan Jeanne Deborah Anderson Assistant Attorneys General
IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
NO. 10-CR-OO1175-003
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On April 15, 2010, Appellant, William Davis", Jr., was indicted by a Jefferson County grand jury on two counts of complicity to manufacture methamphetamine and one count of possession of drug paraphernalia. On December 6, 2010, Davis pled guilty to the two manufacturing charges in exchange for a recommended maximum penalty of twenty years imprisonment and a $500 fine on each count. The terms of imprisonment were ordered to be served consecutively, for a total sentence of forty years and a $1,000 fine. The trial court also dismissed the possession of drug paraphernalia charge.
A provision of the plea agreement was entitled, "Reverse Hammer Clause." Although Davis pled guilty and agreed to forty years imprisonment, the reverse hammer clause provided that the Commonwealth would amend one count of manufacturing methamphetamine to facilitation to manufacture methamphetamine and recommend at sentencing, a total sentence of fifteen years imprisonment if Davis satisfied certain conditions prior to formal sentencing. One such condition was that Davis not violate the law. The record indicates that Davis expressly acknowledged that he was proceeding against the advice of his counsel, and that there would be serious consequences if he violated the terms of this agreement. A sentencing hearing was scheduled for February 3, 2011, and Davis was released on his own recognizance.
Unfortunately, on January 5, 2011, Davis was arrested and charged with yet another count of manufacturing methamphetamine. Accordingly, the Commonwealth requested that Davis be sentenced in the present case in accord with the plea agreement. The trial court then scheduled a hearing to determine whether Davis had violated the terms of his plea agreement.
An extensive sentencing hearing was held on April 13, 2011, which included testimony from the arresting officers and Emmaelisa Orsino, who was arrested with Davis on January 5, 2011. One officer testified that Davis told him that he "had forty years on the shelf from being involved in methamphetamine before." After hearing all the evidence and arguments of counsel, the trial court determined that Davis had violated the law. Davis did not attempt to withdraw his guilty plea. In compliance with the terms of the plea agreement, the court entered judgment against Davis and sentenced him to a total of forty years imprisonment.
Davis now appeals his conviction and sentence as a matter of right pursuant to § 110(2)(b) of the Kentucky Constitution. The facts of the underlying crimes are not germane to this appeal. Only the circumstances surrounding Davis' guilty plea and sentencing are at issue. Two issues are raised and addressed as follows.
Sentencing
For his first assignment of error, Davis urges this Court to remand for a new sentencing hearing because the trial court failed to give due consideration to the presentence investigation report before sentencing and instead erroneously imposed the plea agreement's "hammer clause." We review the trial court's ruling under an abuse of discretion standard. See Chapman v. Commonwealth, 265 S.W.3d 156, 177 (Ky. 2007) ("[A] trial court abuses its discretion by automatically accepting or rejecting a guilty plea without first [] considering all the underlying facts and circumstances, appropriate for the offense(s) in question."). See also Wellman v. Commonwealth, 694 S.W.2d 696, 698 (Ky. 1985) (holding that sentencing issues are appropriate for appellate review, regardless of preservation).
We continue to maintain that hammer clauses are valid so long as a judge does not commit to a specific sentence and impose that sentence "without proper consideration of the other relevant factors[.]" Knox v. Commonwealth 361 S.W.3d 891, 899 (Ky. 2012). Prior to imposing any sentence, trial courts must comply with KRS 532.050(1); KRS 532.110(1); KRS 533.010(1) and (2); and RCr 11.02. The cumulative effect of these statutes and subsequent interpretative cases condemns sentencing decisions made prior to the sentencing hearing "before 'due consideration' could have been given to the 'nature and circumstances of the crime and the history, character and condition of the defendant."' McClanahan, 308 S.W.3d 694, 703 (Ky. 2010) (citing KRS 533.010(2)). See also Chapman v. Commonwealth, 265 S.W.3d 156 (Ky. 2007). For example, in Knox, we reversed the judgment of the trial court because the record failed to reveal any indication whatsoever "that, in fixing [defendant's] sentence, the trial judge might have considered something other than the plea agreement hammer clause." Knox, 361 S.W.3d at 896-97.
In contrast, the trial judge in the present case took several minutes to read the presentence investigation report at the final sentencing hearing prior to sentencing Davis. Additionally, the record indicates that the trial judge had previously read the presentencing report but wanted to read it again in order to refresh his memory. Lastly, the court duly considered the evidence presented at the evidentiary hearing, including a notarized letter by Ms. Orsino regarding the events surrounding the January 5, 2011 manufacturing charge, wherein she stated that she was "simply giving Mr. Davis a ride," and that neither she nor Davis had any knowledge of illegal activity. The trial court also considered Davis' indication that Ms. Orsino was willing to take sole responsibility for the crime the next day in district court. Accordingly, the trial court did not abuse its discretion in its sentencing determination.
Court Costs and Fine
Davis further contends that the court costs and fine should be vacated because he is indigent and serving a forty-year sentence. Although this issue is unpreserved, we will review for palpable error. Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010); Wiley v. Commonwealth, 348 S.W.3d 570, 574 (Ky. 2010). "In order to demonstrate an error rises to the level of a palpable error, the party claiming palpable error must show a 'probability of a different result or [an] error so fundamental as to threaten a defendant's entitlement to due process of law.'" Allen v. Commonwealth, 286 S.W.3d 221, 226 (Ky. 2009) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)). See also RCr 10.26.
The final judgment required Davis to pay a $1,000 fine and court costs of $130. Our review of the record has failed to reveal a financial statement, affidavit of indigency, or other corresponding statement from Davis. Therefore, it is unclear whether Davis was indigent. See Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985) (holding that "when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court"). However, Davis was represented by a public defender throughout the case. See Simpson v. Commonwealth, 889 S.W.2d 781, 784 (Ky. 2004) (this Court assuming that trial court had determined defendant was indigent because a public defender had been appointed). Yet, Simpson is distinguishable from the present case because Simpson did not involve a defendant who agreed to pay a fine as part of a plea agreement. See Commonwealth v. Reed, 374 S.W.3d 298, 301 (Ky. 2012) (affirming the Court of Appeals ruling that a fine imposed on a criminal defendant should be vacated because the fine was outside the scope of the plea agreement); cf. Turner v. Commonwealth, No. 2004-CA-000113-MR, 2004 WL 2915321, at *3 (Ky. App. Dec. 17, 2004) (enforcing payment of a fine that was a part of the defendant's plea bargain). Davis' bargained-for-agreement to pay a $1,000 fine is therefore binding and enforceable.
Further, trial courts may impose court costs on an indigent defendant in a judgment of conviction so long as the court properly considers the appropriate statutory directives. Maynes v. Commonwealth, 361 S.W.3d 922, 929 (Ky. 2012) (holding that the trial court's decision to impose costs on an indigent defendant was not clearly erroneous). Under the terms of Davis' plea agreement, he agreed to pay a $1,000 fine, therefore reasonably indicating to the trial court that he would also be able to pay court costs of $130. This agreement, coupled with the absence of any affidavit of indigency or similar document, is sufficient to find that the trial court's decision to impose court costs was not clearly erroneous. Thus, there was no error.
Conclusion
For the foregoing reasons, the judgment of the Jefferson Circuit Court is hereby affirmed.
All sitting. All concur. COUNSEL FOR APPELLANT: Roy Alyette Durham, II
Assistant Public Advocate
COUNSEL FOR APPELLEE: Jack Conway
Attorney General
Perry Thomas Ryan
Jeanne Deborah Anderson
Assistant Attorneys General